Lord Blackwell: My Lords, I thank the noble Lord for his response but confess that I am not fully satisfied. Does he accept that, even given the trust we have in our civil servants, this is an area where it is very difficult for people to produce a purely factual explanation of the European Constitution without portraying some of their views in the document? Given that, will the noble Lord consider that while the Government are entitled to publish White Papers, for public information—for leaflets and pamphlets distributed at large—it might be sensible to set up a committee of senior Cross Bench party members to ensure that the content is fair and properly represents both sides of the argument?

Lord Triesman: My Lords, knowing that the Question would be asked today, I reread the document and also the shorter document. Aside from my fear of dropping them on my foot, in general I think it would be hard to fault the factual quality of these documents. They provide solid background information and, I think on the most objective reading, could cause no one to take exception.

Baroness Amos: My Lords, the noble Lord, Lord Barnett should speak next.

Lord Triesman: My Lords, if anybody made such a declaration I would probably be the first to disbelieve them. Having said that, it is important that there is good, strong, factual information and I genuinely believe that, if you look at the documents, that is what you find. The Civil Service has done us proud in the work that it has done. Of course, after that there will be strongly held views: people will engage in the most vigorous debate, and make the most preposterous and insightful allegations. That is the nature of a political debate of this kind and we will enjoy it all.

Baroness Scotland of Asthal: My Lords, of course, I apologise for the fact that the 1795 Act was incorrectly referred to. I remind noble Lords that it is not every day that the 1300 Act, the 1870 Act or those other Acts are looked at. There was a mistake. I humbly ask the House's pardon for this terrible mistake that was made by me through that dreadful inaccurate Answer.

Baroness Scotland of Asthal: My Lords, we are grateful that that Act was followed by a number of other Acts that sought to bring it into force. To help your Lordships, there was the Treason Act 1351, the Treason Act 1702, the Treason Act 1842 and the Treason Felony Act 1848, which all amplified our splendid common law offence, so Scotland is safe.

Baroness Greengross: asked Her Majesty's Government:
	Whether the New Vision for Adult Social Care will include a commitment to increase access to low level social care, such as help with shopping and simple household tasks.

Baroness Howe of Idlicote: My Lords, will the Green Paper include among those who might be eligible for reimbursement members of an individual's own family if they are able to provide lower level social care? I hope that he can answer that.

The Lord Bishop of Portsmouth: My Lords, the noble Baroness's Question would have been dear to the heart of the late Lord Sheppard, who was a former Member of these Benches. Do the Government agree that the New Vision for Adult Social Care should lead us to think in terms not just of that rather clichéd expression, "person-centred care" but of person, family and community-centred care? I return to the recent supplementary on the voluntary sector, which is under-resourced and having difficulty in recruiting. However, I would like to instance a successful example of the voluntary sector; namely, the church-sponsored initiative, the voluntary care group advisory service in Hampshire.

Baroness Crawley: My Lords, following the informal meeting of NATO defence Ministers on 9 and 10 February, NATO announced that the package of resources needed for Stage 2 of the planned expansion of the International Security Assistance Force in Afghanistan has been completed. Italy, Spain, Lithuania and the US are providing the core resources.

Baroness Crawley: My Lords, as the noble Lord will know, ISAF's control was mainly in Kabul for the first year or so after the conflict. It has now spread to the north and west of the country, which was Stage 1. Stage 2, to which I referred in my Answer to the noble Lord, Lord Astor, involves our setting up the west as an ISAF area where forces under ISAF will be able to assist the provincial reconstruction teams, NGOs and non-military personnel that are trying to ensure that the country is reconstructed. Stage 3 will concern the far more worrying areas in the south and east.

Lord Marlesford: My Lords, do the Government recognise the case for decriminalising all drugs on the basis that the number of extra people who would die from drug abuse might well be smaller than the number of those who die from drug-related crime? It would also cut the cash flow of organised crime, and much street crime, by, probably, about 90 per cent at a stroke. It would also provide a legal basis for poppy growers in Afghanistan.

Baroness Crawley: My Lords, that is wide of the Question about provincial reconstruction teams and military operations in Afghanistan. I am sure that, if he wishes, the noble Lord can table a question on our domestic policy, which has been made clear many times from this Dispatch Box.

Baroness Crawley: My Lords, we contribute a military force of more than 600 people to ISAF. We also have six GR7 Harrier aircraft based at Kandahar airport that assist ISAF and the coalition forces in Afghanistan. We are committed to helping the Afghan Government provide their own security because building up Afghanistan's national army and police force is the most important part of security.

Lord Kingsland: This group of amendments essentially covers three issues. First, it covers the issue that has already been much debated about whether the burden of proof should be on a balance of probabilities or beyond reasonable doubt. Secondly, it covers the question of whether the appropriate test should be a judicial review test or a test on the merits, with the court looking at the Government's assertion that reasonable suspicion is justified. Thirdly, it covers the stage at which the Director of Public Prosecutions ought to intervene to give a view on whether a prosecution should be brought, perhaps making the control order procedure otiose.
	I shall start with the last point, which we have already debated. It is crucial that every effort is made to ensure that the prospective subject of the control order can be prosecuted before the reluctant conclusion is reached that, despite the fact that prosecution is not possible, nevertheless the person must be subject to one or other of the restraints in Clause 1.
	We believe that it is crucial that the Director of Public Prosecutions is brought in at the beginning, and that only when the director certifies that a prosecution is not possible can the control order procedure kick in.
	There might be two reasons why the Director of Public Prosecutions reaches that conclusion. The first is when the alleged danger is not capable of falling within any definition of any crime on the statute book. The second is when, as the noble Viscount, Lord Bledisloe, said, it would be counter-productive to the national interest to reveal to the prospective subject of the control order either the source of the intelligence or the manner in which it had been garnered. In those circumstances, one must then reluctantly move to the control order procedure.
	I am always extremely nervous about disagreeing with either my noble friend Lord Carlisle of Bucklow and, perhaps even more so, the noble Earl, Lord Onslow. Nevertheless, on this occasion the Opposition reached the conclusion that the balance of probabilities test is more appropriate than the beyond reasonable doubt test.
	I can truncate my submissions by simply asking the Committee to recall the speech that has just been made by the noble Viscount, Lord Bledisloe. It is precisely for those reasons that it will be almost impossible to impose a control order if the judge is required to find that the case is established beyond reasonable doubt.
	As the noble and learned Lord the Lord Chancellor said last Thursday, control orders are all about prevention. They prevent anticipated adverse action. In those circumstances the authorities are always in the business of trying to assess risk. The people involved will already have been under surveillance for a long time, and there will come a point when imminent danger is perceived. At that moment the state will intervene.
	The balance of probabilities test is a much more appropriate way to assess risk than a test of beyond reasonable doubt. I thought long and hard before reaching that conclusion. I do not like that conclusion, but if it is impossible to prosecute somebody who is about to do something very dangerous, we have to accept that the balance of probabilities test is the more appropriate.
	I turn to the subject of my Amendment No. 52, which I shall not move in favour of the Liberal Democrat amendments which deal with the same matter. The Government do not have a case for asserting that non-derogating orders ought to be dealt with by judicial review, whereas derogating orders should be dealt with by a merits test. Both sets of orders ought to have the same test, and the judge should be entitled to go beyond the principles of judicial review, and look at the facts on which the Government base their allegation that somebody should be restrained.
	I have another reason for saying that. How can the authorities know at the time they first seek an order whether it will contravene Article 5 of the convention? There is a range of possibilities in Clause 1(3). We do not know what combination of those forms of restraint the Government will go for, and the Government do not know what conclusion the judge will reach about the relationship with Article 5. Therefore, it is common sense that the procedure should be the same. To decide otherwise would not only be an inappropriate way of confronting the Article 5 issue, but would waste an enormous amount of everybody's time.

Lord Goodhart: This is a large and extremely important group, which contains some very important amendments in our names, so it is necessary for me to speak to them now.
	Our amendments in the group are Amendments Nos. 56 to 62, 73, 81 to 90 and 113 to 115. Except for Amendment No. 73, which deals with a minor point, all are amendments to government Amendments Nos. 55, 80 and 112. We hope to amend those government amendments, which we would then support, as amended by us.
	The amendments have four purposes. The first, and perhaps the most important, is to ensure that all control orders are made by judges and not by the Home Secretary. The lead amendment on that is Amendment No. 56. That issue was originally raised in the debate on Thursday but not voted on then because we decided to concentrate votes today and tomorrow. If we succeed today, we shall have to sort out government Amendment No. 1 on Report. We had a full debate on the principle behind this issue on Thursday.
	The Bill imposes serious restrictions on liberty which may amount to the actual deprivation of liberty in some cases. It is an essential principle that the Government make the laws about the restriction or deprivation of liberty but it is the courts that apply those laws to individual cases, unless there is a crisis so extreme that the Civil Contingencies Act has to be invoked. The Government have accepted the principle that the decision should be taken in individual cases by judges, not the Home Secretary, for derogating control orders, but not for non-derogating control orders.
	We see no logical distinction between the two kinds of order for this purpose. The Government offer only judicial review for the non-derogating control orders. That is inadequate because the court is not making the order; the court can quash the order only if the procedure is defective or if the Home Secretary's decision is unreasonable. Indeed, judicial review would probably not meet the test of a fair trial under Article 6 of the European Convention on Human Rights which, we believe, will apply to control orders. That was a brief coverage, but in view of the full debate that we had on Thursday I propose to add nothing further.
	The second purpose of the amendments is to have a single procedure for all control orders. The lead amendment on that is Amendment No. 81. The Government's new clause, introduced by Amendment No. 80, introduces a new procedure, which we regard as broadly satisfactory, that applies only to the making of derogating control orders. We want to extend the new clause to non-derogating control orders as well.
	Amendments Nos. 82 to 85 and 88 to 90 are consequential on that. They are not strictly consequential on the decision that all control orders should be made by a judge, because it would still be possible to have two different procedures, but pretty close to it. If all control orders are to be made by a judge, it is surely right that the same procedures should be followed for both derogating and non-derogating control orders. In particular, there must be an immediate preliminary hearing, as provided for by the new clause, with a temporary order made by a judge, followed by a full hearing and confirmation, or modification, or revocation, of the temporary order as may be appropriate. That is an essential supplement to the decision that all orders should be made by judges.
	The third purpose of these amendments, and the one that I have found the most difficult of all, is to raise the standard of proof to the balance of probabilities. The lead amendment on that is Amendment No. 58. I cannot see how anything less than the standard of balance of probabilities could justify the making of a control order. If someone, on the balance of probabilities, is involved in terrorist activities, it is reasonable to allow the courts to impose proportionate restrictions, falling short, at any rate, of deprivation of liberty.
	As used in the Bill, "reasonable grounds for suspicion" is a weaker test than that of balance of probabilities. It seems plain that we cannot impose a control order on someone who may possibly be involved in terrorist activities but more likely than not is not involved in such activities. That would result in restrictions on the liberty of innocent people, and that is surely the quickest way to alienate the communities from which those people come. We should therefore have the standard of balance of probabilities as the minimum requirement before any control order can be made, not just derogating control orders.
	We have very seriously considered the question whether there ought to be a higher standard, at any rate, for derogating control orders, and whether that standard should be basically equivalent to the criminal standard. If we had had more time to debate the matter, I would very much have wished to put it forward for debate; indeed, there is an amendment tabled in our name that would achieve that result. But one must look at where we are now. The Government have put us into a situation where we must move very quickly indeed. We recognise that there are arguments—those, for instance, put by the noble Viscount, Lord Bledisloe—for saying that the balance of probabilities should apply throughout.
	The noble Lord, Lord Kingsland, has made it clear that the Conservative Front Bench does not support a proposal for a higher standard of proof on derogating orders or a standard of proof higher than that of the balance of probabilities. That being so—and I regret that it is the case—I believe that the appropriate course for us to take is not, on this occasion, to press for a higher standard than the balance of probabilities. I regret it, and I am sure that it will cause regret to many members of my own party, but the situation in which we have been placed by the Government—the extreme shortage of time—makes it inappropriate to press amendments on which it is unlikely that we will succeed. I hope that we will in due course have a further debate on a successor to this Bill, following a sunset clause, in which this issue can be re-debated.
	The fourth and final purpose of our amendments is to make it a requirement on the face of the Bill that no control order can be made where there is a realistic prospect of a successful prosecution. The arguments on that point were put very firmly by the noble Lord, Lord Kingsland, and I do not intend to add to them. It is plain that control orders should be orders of last resort and not of first resort. There are other very important issues in the Bill, which appear later in it and not in this group, such as due process, rule-making, and reviews and sunset clauses. Those will be reached in due course. All the issues in this group were debated to a significant extent on Thursday. I hope that we will be able to speak and vote on those issues relatively quickly and move on to the other important issues later in the Bill.

Lord Phillips of Sudbury: I support my noble friend and wish to make a single point. On the role of the court, under Amendment No. 56, which would replace that of the Home Secretary, I believe that the intensity of pressure on a Home Secretary in exercising the very wide powers under Clause 1 is almost unreasonable for him to have to bear unaided. I think that the public will take the view that the wider the powers given to the Home Secretary under Clause 1 the more he would be expected to exercise them in a way that relieved the public of risk from terrorist activities. That may be unfair but it is a reasonable supposition. Surely, that in turn will put the Home Secretary of the day under enormous strain to be cautious in exercising those powers—cautious, that is, in exercising them rather than in refraining from exercising them. He or she will say, "I have been given by Parliament these unprecedented, enormously wide powers, in the expectation that I will use them to prevent a terrorist attack". If, therefore, there was such an attack, he or she may well come under an unfair, yet very intense, public outrage that those powers had not been used.
	To give the judges the responsibility of exercising those powers under the non-derogating control orders is not only to give more objectivity to the process—as, plainly, it will do—but also to lend a degree of protection to the Home Secretary of the day in relation to this extraordinary measure. For that reason alone, there must be the best sense in having the court replace the Home Secretary in the exercise of non-derogating control orders.

Lord Monson: As a non-lawyer, perhaps I may ask the noble Lord, Lord Goodhart, whether it is not the case that, under recent legislation, if the police have reasonable grounds to believe that an individual may be planning to get involved in football-related disorder, that individual may have his passport removed, albeit on a temporary basis, and be ordered to report to the police at specified times. There does not appear to be any proof, but there is a balance of probabilities that the individual may get involved in football-related violence.

Baroness Kennedy of The Shaws: Your Lordships know my position on the Bill. I think that it is wholly misconceived. I would not want to see orders being made on anything less than the criminal burden of proof. However, I shall support the amendments that have been tabled by the Opposition parties, simply because they have to be better than the awfulness in the Bill. I would therefore urge Members of the Committee who are concerned about liberty to take the same course. When my noble and learned friend Lord Clinton-Davis—he is a learned friend, but I meant to say noble friend—accidentally referred to these as "derogatory" powers, he was perhaps using the right word.
	As we come to a whole series of votes on such important issues, I should like to remind the House of a quote from Martin Luther King which I am sure is familiar to many on these Benches. He said:
	"On some positions, cowardice asks the question 'Is it safe?'. Expediency asks the question: 'Is it politic?'. And Vanity asks the question: 'Is it popular?'. But conscience asks the question 'Is it right?'. And there comes a time when one must take a position that is neither safe, nor politic, nor popular. But one must take it because it is right".
	That is what the Committee is being asked to do today. I hope that we will remember it as we are asked to go to the Lobbies.

Lord Plant of Highfield: Like many other noble Lords I had a chance to speak on Thursday, so I shall be brief. However, since I an going to support the opposition amendment before us, I want to say a few words about my position. I am not opposed to control orders, but they have to be made as compliant as possible with our human rights legislation and with common law ideas of natural justice. These amendments go some way towards achieving that.
	It is perfectly legitimate to restrict liberty for the sake of liberty, as the American philosopher John Rawls argued, or as Isaiah Berlin put it more poetically: freedom for the pike is death for the minnow. Sometimes we have to restrict liberty for the sake of liberty, but we should do so in a principled way that is consistent, so far as it possibly can be, with our existing human rights legislation.
	Given that, the decision being made by a judge on an application from the Home Secretary is the right way around. I also agree with the argument put by the noble Lord, Lord Kingsland, about the Director of Public Prosecutions. I am very pleased that the Home Secretary has committed himself to the view set out in his evidence to the Joint Committee on Human Rights that,
	"prosecution followed by conviction is far and away by a long way the best . . . way of achieving what we want to do".
	However, once this Bill becomes an Act and is institutionalised, there is a danger of non-prosecution at a lower standard of proof becoming the default position. That would be a very bad thing. So I am in favour of the argument about the role of the DPP.
	On the burden of proof, as I explained to the noble Lord, Lord Carlisle of Bucklow, in the Cloakroom the other evening, I am as anxious about the standard of proof for derogation orders as for non-derogation ones because the test of "reasonable suspicion" seems far too low. Moreover, the point made by the right reverend Prelate that a much lower standard of proof in the form of reasonable suspicion might actually encourage the default position is one that I had not thought of.
	For those reasons, I am keen on the idea of raising the standard of proof for non-derogating orders to the balance of probability and, as other noble Lords have pointed out, I see both types of order as similar in their effect on liberty. After all, my liberty is restricted when I am required to do what I would not otherwise do or required not to do what I otherwise would do. Non-derogating orders restrict my liberty in those respects in just the same way as derogating orders. So if the two kinds of orders are symmetrical, there ought to be the same standard of proof for both.
	Although I am not unsympathetic to the view that the standard should be higher than the criminal standard, I thought that the point made by the noble Viscount, Lord Bledisloe, was very telling. Rather regretfully, therefore, I will support the idea of the balance of probabilities, but for both types of order.

Lord Lester of Herne Hill: Since I was not able to be present for the Second Reading debate, I should like to make one or two brief points. First, I am no longer a member of the Joint Committee on Human Rights and therefore I am in a good position to say how pleased the House ought to be with the speed with which the committee has been able to produce not one, but two reports under great pressure of time. I am only sorry that that pressure of time has prevented the committee from dealing with all the issues. It is plain that it had to concentrate on addressing only the most important, and I agree entirely with what has been reported.
	Secondly, on the standard of proof, the great advantage of a standard based on probability is that the courts have made it quite clear that that is a flexible standard and that the more serious the interference with basic rights and freedoms, the higher the standard will be within the spectrum of probability. Therefore the great advantage of the standard of probability, if it is adopted by the House, is that it will give the courts the necessary flexibility so that, for example, where a fairly serious control order is sought, they will no doubt require a higher standard of probability than they would for an order seeking minimal interference.
	I continue to be puzzled by the Government's approach to judicial involvement. I cannot understand why, if a warrant is needed from a magistrate merely to search premises or papers—that is often a ritual, but it is an important safeguard—the Government have resisted the notion of a similar form of judicial control from the outset.
	Last but not least, I have enormous respect for Sir John Stevens, the retiring Commissioner of the Metropolitan Police, but I very much regret the headline in yesterday's News of the World over an article:
	"Forget human rights . . . kick out the fanatics".
	Indeed, one or two passages in the piece surprised me, given my respect for Sir John. He suggested, for example, that the Law Lords had instructed that the Belmarsh detainees should be released immediately. That is just wrong because it was not within their remit. More importantly, however, he suggested that there is a human rights lobby that is somehow acting against the interests of the people of this country. I am sure that that is not the view of the Government.

Lord Judd: I declare an interest as a member of the Joint Committee on Human Rights.
	In view of what has just been said, it would be proper to say that we have found ourselves in an immensely difficult situation. We, too, have felt that we are dealing with one of the most profound issues—absolutely central to our responsibilities—with which we have ever been asked to deal. We have found that the time constraints have made that task very difficult indeed. That is why we had no option in the end but to prioritise our discussion.
	I should like to make three points. First, we would all agree, whatever our position, that there is not a perfect solution. We are going for the best possible available solution. I respect the argument, and certainly the quarters from which it comes, that the judge should not be put in the position of taking over political responsibility. However, when I look at statements by the Government, not least by the Prime Minister and Home Secretary, I think that they are to be commended for their candour. Both, it seems, have been at pains to say that they would not want to be accused by the public of not having done everything possible to protect the public.
	That seems a very responsible political position, but that is precisely why they are not in the best position to judge what should be done with someone who has been apprehended and arrested. That is exactly why—because they have that responsibility. Arguably, that responsibility undermines their objectivity in this situation.
	My second point is related to what the noble Lord, Lord Forsyth, said. I do not live my life in legal circles. I have been involved in community work. I am accustomed to community dynamics. What has always seemed crucial to me in the credibility of the administration of the law in our country, is that we take seriously the issue not only of justice being done, but of being seen to be done. The difficulty is that in the present security situation it is not possible for it to be transparent all the time. That is why we should do everything possible, push as far as we responsibly can, to demonstrate that the proper processes have been followed and that cases have been carefully and objectively considered.
	My last point is simply that I happen to believe that we are not only facing one of the greatest human rights issues with which we have ever been faced, but also one of the most dangerous situations with which we have ever been faced. I believe that history will never forgive us, in the pressure and acute nature of the danger we face, for doing things that prove counter-productive, historically, in winning the battle for hearts and minds.
	We shall never be able to eliminate the possibility of terrorism. The best way, the only effective way, in which we shall be able to contain those dangers is to win the battle for hearts and minds. That is why objectivity, due legal processes and the rest are so important.

Lord Falconer of Thoroton: This is an incredibly important debate. It follows on from the debate that we had on Thursday. The starting point of the debate and the first issue is whether or not noble Lords believe that something beyond surveillance and short of the criminal process is required. It is the view of the security services that it is, it is the view of the police that it is, it is the view of the committee of the noble Lord, Lord Newton, that it is. We think it is necessary in the face of the new threat that terrorism poses to this country.
	I understand that the position of the Conservative Party and of the Liberal Democrat Party is that they too support the concept of something that is not a criminal process, some sort of court order that restricts the movement or activity of the subject and assists the fight against terrorism. We take the view strongly that that is required, but we do not take the view that that should be done by throwing civil liberties out the window. We think that it has to be done by balancing civil liberties against those requirements.
	That is the starting point. If you accept that starting point, as the three Front Benches do, as the law-enforcement agencies do, as the independent bodies that have looked at it do, then I believe that the task for this House and another place is to seek to craft a solution that balances civil liberties against the need to protect the nation in a way, to pick up the words of the noble Lord, Lord Forsyth, that has common consent. That, I believe, is the work that we should be engaged upon.
	This group of amendments raises four issues. First, should the court be involved first, before an order becomes effective, in relation to a non-derogating order. That is an order that does not deprive somebody of his liberty.
	We say that is neither necessary nor appropriate for the following reasons. The judgment about whether or not security will be assisted by the making of a non-derogating order is made by the Home Secretary in the first place; and then, in order to protect civil liberties, there must be proper judicial involvement. The Home Secretary will assess the risk to the nation and ask himself whether the intrusion on an individual's rights—and this is not about deprivation of liberty but about the individual's rights, for example, to associate with someone else or to be in contact with other people—is justified by that risk.
	The Home Secretary makes the order in the first place and the arrangements then involve the matter coming before the court as quickly as possible. We need to consider whether or not the Bill should be amended to ensure that the matter comes before the court as quickly as possible. In applying a judicial review test, the court considers, on the basis of the evidence put before it, whether the risk that the Home Secretary has identified is such that it justifies the intrusion on to that individual's rights. In effect, it is asking whether the intrusion is justified by the risk identified by the Home Secretary.
	That is a very sensible judicial way of looking at matters and is a perfectly possible task. It also makes absolutely clear the Home Secretary's role and the judge's role. There is clarity and protection. That is why we submit that, in relation to non-derogating orders, the Home Secretary should make the order in the first place and then, within a very short time indeed, the matter should come before the court. In relation to non-derogating orders, it should be clear that the Home Secretary makes the judgment, but subject to judicial control.

Lord Falconer of Thoroton: We draw the line between the two because the European convention on Human Rights draws the line between the two. There needs to be a lawful basis—one selected not by the Government but by an accepted body of jurisprudence—as to why the distinction is drawn. It would not be enough for us to say, "We draw the line here but not there". Let us draw the line based on the European Convention on Human Rights, to which this country has signed up.
	Of course it is possible to say that the connection between the lower end of the derogating order and the upper end of the non-derogating order might be close, but in practice there will be a very significant difference.

Lord Falconer of Thoroton: Under the jurisprudence of the European Convention on Human Rights it is not a deprivation of liberty. It might well constitute infringements of Articles 7 to 11 but, as I said during the course of the debate on Thursday, that matter does not require a derogation and can be dealt with by the courts. We see as fundamentally different the deprivation of liberty that derogating orders could involve.

Lord Falconer of Thoroton: The Bill provides that you can make a derogating order only if you have derogated from the convention. We are not derogating at the moment. If any order constitutes a deprivation of liberty, it will be struck down by the courts. So we are providing judicial protection against any deprivation of liberty.
	I think the noble Lord, Lord Lester, should intervene first; then the noble Lord, Lord Brittan and then my noble friend Lord Clinton-Davis.

Lord Donaldson of Lymington: May I take the noble and learned Lord the Lord Chancellor back to the point of judicial control by means of judicial review? I am not boasting, but I have probably presided over a divisional court for longer than anyone in the Committee, because I did it for nine months. It was concerned mostly not with Home Secretaries or central government, but with local government: with problems such as whether proper priority was being given to particular classes of people seeking housing.
	It was by no means unusual for my colleagues and I in the court to conclude that we would never have done something but that it was within the scope of the local authority. That is a weak form of control.

Lord Falconer of Thoroton: No, the courts would have access to all of the evidence. The issue in such cases is not whether the court has access to the evidence, but whether the citizen who makes the application sees all the material. That is the reason for the special advocate procedure. So the court would have sufficient material to judge whether there was a legitimate aim against which the order had been made, whether the steps were proportionate and what was the level of risk.

Lord Falconer of Thoroton: I respectfully submit that that position is one that any sensible government would take in relation to these orders. When considering whether a matter is proportionate, the court would be able to say that it would not be proportionate if prosecution were possible. So in practice the court would have to see material and ask the question, "Why don't you prosecute?", and if there were no satisfactory answer, it would not be a proportionate order.
	I turn to the most important issue, which is burden of proof. Control orders, as the noble Lord, Lord Kingsland, said, are preventive orders. They are designed to prevent atrocities happening in future. They are not designed to punish a person for past events. They require an assessment of the overall security situation, of the risks posed by particular individuals and of what measures, from a potentially wide range, are necessary and appropriate to meet those risks. The assessment must be carried out on the basis of a wide range of complex intelligence material and would involve inferences and evaluations being made in relation to matters affecting national security.
	For those reasons it is not an area where the Secretary of State or the court will deal with proof of issues of fact. Essentially it is an exercise in risk assessment and evaluation of intelligence material.

Lord Falconer of Thoroton: No, that is completely wrong. The test is, "What is the risk?". We are talking about—convention rights are engaged here—the level of risk for the future, which is not something that can be proved by conventional burdens. If the degree of risk is sufficient, the steps that can be taken can be justified. There is no difficulty in asking oneself the question, "Is the risk shown by the Secretary of State"—and he has to show that risk—"such that the steps he has taken are proportionate and justified?".

Baroness Scotland of Asthal: The preliminary hearing of a derogating control order will take place within a few days, if not hours, of the application by the Secretary of State. Because of this—and because the initial hearing will be on an ex parte basis—there will normally be no need for any additional provision.
	However, in some cases it may be believed that an individual who is the subject of the control order application may disappear before such time as the order, if made, can be served on him. In derogating control order cases we need to be satisfied that the imposition of the most stringent condition is necessary to protect the public. An inability to act to prevent such an occurrence would leave a significant gap in the derogating control order system.
	We have therefore provided that there should be a new power of police arrest and detention pending the preliminary hearing before the court for the necessary order. The new clause provides that the period of detention should be for a maximum of 48 hours in the first instance and the power arises only after the Secretary of State has made the application and provided that it is necessary to ensure that the suspect is available for service of the order if made. This may be extended under subsection (4) for a further 48 hours by the judge considering the ex parte application.
	The remaining provisions relate to the status of the individual while detained under this provision including applying many of the powers as safeguards provided in respect of Section 41 of the Terrorism Act detention provisions such as access to lawyers, the ability to notify someone on his arrest and similar matters. Such powers of arrest will in themselves require a derogation for Article 5 of the ECHR. Subsection (5) therefore provides for this.
	Amendments Nos. 148 and 154 may also be included in this group. I shall therefore speak to those.
	Amendment No. 148 ensures that any proceedings questioning the arrest and detention of a person under the new powers fall within the definition of proceedings that may be considered by the court.
	Amendment No. 154 includes the new power of arrest within the definition of derogation matter, since the specific derogation respect of this power would also be needed. I beg to move.

The Duke of Montrose: This clause on arrest and detention pending a derogating control order has caused some worries north of the border. The clause appears to allow a constable to arrest and detain an individual if the Secretary of State has made an application to the court for a derogating control order in respect of that individual and the constable considers that the arrest and detention is necessary to ensure that he or she is available to be given notice of the order if it is made. They will have to wait until a letter is delivered or until something similar occurs.
	I appreciate that the Government may wish to make provision to ensure that those suspected of involvement in terrorism-related activity are held in custody pending determination of the derogating order, but is the mechanism set out in the Bill the appropriate way to achieve this? I would also welcome clarification of how this will interact with Scottish criminal procedure.
	There is in Scots law a clear distinction between detention and arrest. The intention behind the traditional concept of detention is to allow time for further enquiry by the police where there is reasonable cause to suspect the involvement of an individual in the commission of a crime punishable by imprisonment but where there is insufficient evidence to press charges.
	The purpose of detention is to assist in the investigation of the matter. As soon as it is clear that sufficient evidence exists to arrest a suspect, detention should be terminated and at that point the person may be arrested.
	A person may be arrested when there is sufficient evidence to point to the involvement of that individual in the commission of a crime. The crime must be one which is capable of being punished by imprisonment. In this subsection, there is no clear reference to the constable suspecting that the individual has been involved in a crime. The basis of the arrest appears to focus on the fact that an application has been made and the ability to serve notice of the derogating control order on the controlled person. It might be more appropriate for the subsection to refer to a belief on the constable's part that the individual is or has been involved in terrorism-related activities and therefore that detention—rather than arrest—is appropriate while further enquiry is going on. If there is sufficient evidence to proceed to arrest, why are criminal proceedings not raised and pre-trial detention considered?
	Alternatively, if the purpose of the provision is to ensure that the individual's movements are restricted pending determination of the derogating order, rather than introducing an artificial concept of arrest, a combination of conditions could be imposed on the individual in terms of a non-derogating order which would allow for supervision or monitoring over the period concerned.
	I question whether the clause currently takes full account of the devolution settlement. Will the Secretary of State consult Scottish Ministers before police officers in Scotland become involved in the process? If there is sufficient evidence on which to arrest an individual, will the Lord Advocate become involved in the direction of the investigation?
	Clarification would therefore be welcomed on the terminology which is used in relation to detention and arrest, especially in the Scottish context; the appropriate basis for detention or arrest—that is, based on suspicion of criminal activity; and, the role of Scottish Ministers and in particular the Lord Advocate in this process. Subsection (4) refers to the power of the courts to extend the custodial period of 48 hours by a further period of 48 hours. It is unclear whether the court will make this assessment ex proprio motu or on the application of the police officer involved.

Lord Morris of Aberavon: I voted against the Government on the previous issue; I rise to support the Government on this amendment. There is a hole to be filled up by reason of the previous concession of the Home Secretary and the decision taken by the Committee today.
	The analysis of the noble and learned Lord, Lord Lloyd, is absolutely right about what has to prevail on all the circumstances that we normally know about. These are unusual circumstances. There is a hole to be filled up. There is a need to ensure that a person for whom the Home Secretary wishes to issue an order must be available when that order is made. Therefore, as a matter of common sense, the amendment should be carried.

Baroness Scotland of Asthal: There are two factors. My right honourable friend the Home Secretary remains responsible for those issues throughout the whole period in which he remains in that role. As noble Lords would expect, and a number of noble Lords who have been in this position will know, the Home Secretary will get regular briefings on the state of security matters as they pertain to our country. Therefore, it is likely that he will be in a better position to take immediate action, the Security Service and the police having identified a particular activity. He will be able to act quickly to ensure that that is brought under control.
	It will then be necessary for the Home Secretary to put before the court the evidence upon which he seeks to rely to verify and justify the act that he has so taken, and the court will be able to carry out merit-based scrutiny of derogating orders and decide whether the judgment exercised by the Home Secretary was correct. I will talk about derogating orders, as they are the parts on which we are all agreed, notwithstanding the vote that has just taken place.

Baroness Scotland of Asthal: First, these orders would not differ from ordinary orders in as much as, if there is to be breach, the order would have to state clearly what those acts and/or omissions that the individual would have breached were. That was my first point.
	My second point is about the notice containing a statement explaining why the control order was being imposed, renewed or modified. One of the difficulties in such cases is that the reason for the modification or the control order might be within the ambit of information that cannot be given precisely to the individual. We have already spoken about the procedures and the matters that may be closed information or open. For these reasons, we say that Amendments Nos. 117 and 119 are flawed, because they do not seek to acknowledge closed information, which may be the basis on which the modification is made and, therefore, which may not be able to be disclosed to the individual.
	On Amendment No. 119, which requires the Secretary of State to serve a summary of the case upon which he has relied to the controlled person, there is the same issue as for Amendment No. 118. It will be of the utmost importance for there to be a great degree of clarity on the precise nature of the restrictions and the conditions. That individual should know precisely what he is or is not permitted to do by way of the control order and the consequences of breach. Those matters could easily be provided in a way that would provide clarity.
	The noble Lord, Lord Thomas of Gresford, talked of notes "intelligible to him". Those words would apply to each and every order that is made to these or other proceedings. We would say, with the greatest respect, that they are unnecessary.

Baroness Scotland of Asthal: moved Amendment No. 132:
	Page 9, line 6, leave out "1(1)(a) and (b)" and insert "3(A1)(a) and (b)"
	On Question, amendment agreed to.
	[Amendment No. 133 not moved.]
	Baroness Scotland of Asthal moved Amendment No. 134:
	Page 9, line 15, leave out second "the" and insert "a"
	On Question, amendment agreed to.
	[Amendments Nos. 135 to 137 not moved.]

Lord Falconer of Thoroton: The rules are displaced for the first occasion only. The rules that apply to the ordinary England and Wales High Court need to be amended to deal with this situation, and they will need to be ready by the end of the week. That is why, in the schedule, the Lord Chancellor can make changes for the first time. Thereafter, the changes can be made in the ordinary way, which is entirely consistent with what the noble Lord, Lord Kingsland, urges for, and I support him on that. However, I recognise the difficulty of that first set of rules.

Lord Fraser of Carmyllie: Is not my noble friend Lord Kingsland absolutely right about this? As I am sure the noble and learned Lord will recollect, when the Scotland Act 1998 was brought into force, one of the provisions in that statute was that the European Convention on Human Rights should be brought into force with immediate effect. The fact of the matter was that it was brought into effect in Scotland a year before it was brought into effect in the rest of the United Kingdom. In such circumstances, if my noble and learned friend Lord Cullen was dumb enough to introduce rules into the Court of Session which were in some respects not compliant with the European Convention, other members of that court would strike them down. That must be the case. It is not a matter, as my noble friend Lord Kingsland says, that it might be compliant, or there could be some judgment of non-compliance; it has to comply under the law.
	What I am struggling to understand is the noble and learned Lord the Lord Chancellor saying, "We can sort of do it in England and we shall try to ensure that it complies with the European Convention". What we in Scotland are trying to be clear about concerns the absolute requirement in law that what is introduced in Scotland is compliant with the European Convention. There can be no doubt or grey area about that which the courts might sort out sooner or later.
	I am surprised that the noble and learned Lord did not listen to what the noble and learned Lord, Lord Cullen, said in a most interesting intervention during the Constitutional Reform Bill when he pointed out, absolutely correctly, that there is no such thing as a decision of the House of Lords in its judicial capacity; there is a decision of the House of Lords in a Scottish case, or a decision of the House of Lords in an English or some other case. Lawyers are not that dumb. If there is a decision by the court in England in an English appeal by the House of Lords, it is to be expected, if they are going to be consistent, that they will come to much the same or exactly the same conclusion in Scotland. Nevertheless, there are two separate sets of appeals.
	What is fascinating about this debate is that it underlines and highlights for the first time that we have a statute passed by this Parliament in 1998 which said, "You must secure compliance with the European Convention on Human Rights in Scotland". However, it does not say the same thing for England and the rest of the United Kingdom. That is what we are trying to tease from the noble and learned Lord, to understand exactly what the situation is.

Lord Falconer of Thoroton: I am grateful for the opportunity to clarify the matter. First, I accept entirely that rules promulgated by the Lord President must comply with the European Convention and, if they do not, they can be struck down by the Court of Session or, indeed, by any other court that looked at them. Secondly, the rules promulgated by the Lord Chancellor, having consulted with the Lord Chief Justice, also have to comply with the European Convention because they are not primary legislation. It is not a question of whether or not a declaration of incompatibility is given. Short of primary legislation, a public authority in England and Wales cannot act incompatibly with the European Convention.
	I am sorry that I did not make it clear before—this is entirely my fault—that I agreed entirely with proposition number one and proposition number two. The third proposition that the noble and learned Lord, Lord Fraser of Carmyllie, made was that I should have listened to what the Lord President, the noble and learned Lord, Lord Cullen, said about there being no such thing as a decision of the House of Lords sitting in a judicial capacity. I say with great humility that I did listen to what the noble and learned Lord, Lord Cullen, said, and I agreed with him an amendment to the Constitutional Reform Bill that I then put before this House. This House agreed with it because it also listened to what the noble and learned Lord, Lord Cullen, said. I always listen to what the noble and learned Lord, Lord Cullen, says.

Lord Phillips of Sudbury: Has not the Committee slightly lost the track of this debate? Surely we should be talking about the merits of the rules that are ultimately put forward. All sorts of rules could be compliant with the European Convention without commending themselves to this House or to any other House. I must confess that non-lawyers listening to this debate must wonder where we are getting to. Surely merit is what we are talking about, not the European Convention.

Baroness Hollis of Heigham: I beg to move that the draft Social Security Benefits Up-rating Order 2005 and the draft Guaranteed Minimum Pensions Increase Order 2005, which were laid before this House on 1 February, be approved. I am satisfied that both these instruments are compatible with the European Convention on Human Rights.
	As your Lordships are aware, these draft orders are a routine annual event but nevertheless they are an important part of DWP business. The uprating order will, as usual, increase most benefits from April in line with the retail prices index for national insurance benefits and the Rossi index for income-related benefits.
	For the 12 months ending in September the retail prices index rose by 3.1 per cent and, in the same period, the Rossi index rose by 1 per cent. The Guaranteed Minimum Pensions Increase Order sets out the amount by which contracted-out occupational pension schemes must increase members' guaranteed minimum pensions which accrued between 1988 and 1997.
	Where the annual increase in the retail prices index exceeds 3 per cent, the guaranteed minimum pensions indexation requirement is capped at that level under the primary legislation. This year's order therefore provides for an increase of 3 per cent. The estimated cost of uprating benefits for 2005–06 is £2.92 billion. Of that, £2.1 billion goes to pensioners. Some £440 million is for disabled people and their carers, around £300 million is for working age people and £80 million is for children, of which £60 million is above inflation.
	I shall first spend a moment on the subject of pensions. We continue to show our commitment to tackling pensioner poverty. In this order, we are again doing more for older people. We have kept to our guarantee to uprate the basic state pension by the higher of 2.5 per cent or the increase in RPI. Uprating this year is in line with the RPI at 3.1 per cent. This will give an increase of £2.45 to £82.05 per week for a single pensioner, and of £3.95 to £131.20 per week for a pensioner couple. Pensioners have seen a 7 per cent real terms increase in their state pensions as a result of previous above-inflation increases.
	We continue to target our resources toward the poorest and the guarantee element of pension credit will increase by 3.8 per cent, in line with earnings. In April, the guarantee will rise from £105.45 to £109.45 a week for a single person, and will increase to £167.05 for a couple. This approach means that by 2008 there will be half a million fewer pensioners in poverty than there would have been if the guarantee had been uprated in line with prices.
	The pension credit savings element threshold will increase in line with the basic state pension to £82.05 for a single person and £131.20 for a couple. This savings element ensures that people aged 65 and over who have been able to make modest provision for their income in retirement are rewarded. From April 2005, single people with an income up to £151, and couples with an income of up to £221, may qualify. There are now 2.65 million households—some 3.22 million individuals—receiving pension credit. Over 1.99 million pensioner households are receiving more money as a result of pension credit, gaining on average £17.46 a week. Pension credit is helping over 2.14 million older women, who form around two thirds of the total beneficiaries.
	To help older pensioners with living expenses, including council tax bills, there will be an age-related payment of £50 made with winter fuel payments for 2005–06 to households with someone aged 70 or over. Between 1996–97 and 2002–03, the poorest pensioners have seen their incomes grow at similar rates to the richest pensioners. The incomes of the poorest fifth of pensioner couples have grown by 14 per cent, while the richest fifth saw their incomes grow by 11 per cent.
	We will be spending £10 billion extra on pensioners in 2005–06 compared to the 1997 system. Around half of this—£5 billion—will go to the poorest third of pensioners. In 2005–06, pensioner households will be an average of £1,350 per year—about £26 a week—better off as a result of our tax and benefit policies than they would have been under the old 1997 system. The poorest third of pensioners will be £1,900 per year better off on average.
	Let me now turn to children and families. To support parents, standard rate statutory maternity pay and maternity allowance will increase from £102.80 to £106.00. By 2007, the maximum maternity pay and child benefits for mothers at home with their first baby will have risen by £5,000 in real terms since 1997. Non-dependant deductions in income-related benefits have again been frozen. This illustrates our constructive response to criticism that they were too high, and will benefit around 190,000 claimants.
	Our fight against child poverty continues. Families receiving income support and jobseeker's allowance will continue to benefit from the increased generosity in child tax credits. The child element of the child tax credit will increase to £1,690 a year in April 2005. This is an increase of £245 since its introduction in 2003, and is £65 above this year's rate. It will benefit over 7 million children in almost 4 million families.
	Child allowance will increase from £42.27 to £43.88 and the disabled child premium, which is in addition, will also increase from £42.49 to £43.89. The enhanced disability premium for a child will increase from £17.08 to £17.71.
	By 2005–06, total spending on financial support for children will have gone up by over £10 billion in real terms since 1997. Families with children will be, on average, £1,300 a year better off as a result of Government reforms in the tax and benefit systems since 1997. The poorest fifth will be £3,000 a year better off. I am sure that noble Lords will agree that that is significant progress.
	In speaking to this uprating order, I have concentrated on the financial situations of pensioners and children. I have not spoken about disabled people because we have only recently completed the Disability Discrimination Bill and I thought that it was more useful to refer to the other groups in our society who have not recently had your Lordships' attention. I hope that your Lordships will welcome the good news in the uprating order and will accept it tonight. I commend the orders to the House.
	Moved, That the draft order laid before the House on 1 February be approved [8th Report from the Joint Committee].—(Baroness Hollis of Heigham.)

Lord Higgins: My Lords, the pattern of debates in this House in the past few days has become fairly consistent. The noble Lord, Lord Kingsland, and the noble and learned Lord the Lord Chancellor discuss crucial matters of terrorism, life and death, imprisonment without trial, the Human Rights Act and so on but every so often there is a break—at lunchtime or dinnertime—when the Minister, the noble Lord, Lord Oakeshott, and I come into our own. Indeed, on occasion it has been rather useful because they have managed to work out what on earth is happening about the other Bill. I find the way in which the Government are proceeding in that matter, and the shambles that the procedure has become from time to time, to be of the gravest concern.
	Having said that, one must recognise that the orders that we are debating this evening will have an immediate effect on millions of people, whereas the other measure, about which I express grave concern, deals with a comparatively small number of people. Clearly, they are both of great importance but one needs to keep what we are debating tonight in perspective, though I regard the implications of the other matter as fundamental to our way of life.
	As the Minister has pointed out, this is an annual festival. It is normal for this matter to debated in a wide context, although this evening the Minister has constrained herself within the narrow limits of the orders. Traditionally, the debate has been very broad.
	I thought I ought to look up what the Minister said when I first engaged in these annual debates. I think this is the seventh or eighth debate we have had on this matter. But, inadvertently, I found the debate when the Minister was still in opposition. Interestingly, she said:
	"As a way of capping budget, the Government have tried to target benefit on those financially most in need. And because the Minister and his department did not get their heads around the problem, the Government targeted that budget in the simple minded way of extending means testing at the expense of insurance-based budget benefits".—[Official Report, 20/2/1997; col. 848.]
	Well, I suppose one can change one's mind. Certainly, events since then have not been out of line with the approach that that government were taking.
	Given that this is a broad-ranging debate, the Minister rather surprisingly did not refer to the Turner report. One of the many interesting comments made by Turner is:
	"The UK pension system appeared in the past to work well because one of the least generous state pension systems in the developed world was complemented by the most developed system of voluntary private funded pensions".
	But, tragically, that balance has been wrecked. I think that that is the right way of putting it. In significant measure, that was done by the action taken by pension funds following the Chancellor's action on ACT, in conjunction with the concerns that finance directors then had with regard to FRS17. The result is that membership of final salary schemes has halved since 2000. That balance has been wrecked.
	Alongside that, we have had the take-over of matters by the Chancellor and the Treasury, who are obsessed with tax credits, although, as we well know, the take-up of tax credits has been very disappointing. This has taken place against a background of three Secretaries of State who might reasonably be regarded as compliant. I therefore take heart from the fact that the present Secretary of State seems to be adopting a rather more independent line on those matters. One might almost say that the Chancellor of the Exchequer and the Treasury are heretical in these matters. A collection should be made of the various statements made by Mr Alan Johnson in the pensions debate on 13 October.
	The noble Baroness held forth about the virtues of pensions credit. But on 13 October the present Secretary of State said that there were no such plans to continue it indefinitely. At the ABI conference he said that he would be crazy to say pensions credit does not act as some disincentive to savings to some people. On 13 October he also said that we should not be talking in euphemisms—it is a means test. The hallmark of the Government's policy has been to move more and more towards means testing.
	The noble Baroness quoted some figures for pensions credit. They may be more up to date than the ones I had but no doubt she can correct me if I am out of date. Some 3.75 million people are entitled to pensions credit and 2.65 million appear to have taken it up. So it looks as though 1.63 million of those entitled to it have not taken it up. That is a pretty appalling level of take-up for what is intended to be a comprehensive measure.
	The noble Baroness has rightly pointed out that uprating is in line with prices and not earnings. This year we have not had an increase of 75p on the pension as a result of the uprating as we had on a previous occasion. I suspect that that is still in the back of pensioners' minds. The extent of the increase seems to have depended considerably on whether an election was thought to be in the offing or not.
	I would like to raise one point on the specific notification to individuals. The notification that is going out to pensioners does not say what the increase is—either as a percentage or a quantity. That is rather strange in a pre-election period.
	I have in front of me one such notification which has come my way. It does not say that there is an increase of so much or that this will mean your benefits will increase by so much. Clearly the Government have missed out on an electoral opportunity in doing this. It would be helpful in future if people were told what their benefit is currently and what it will be in the future—assuming that the department computer can cope with this which, given our experience of it, may not be the case.
	It would be hard for pensioners to work out whether the statements that are being put through their letterboxes are right or not. For example, at the end of a long list of items it suddenly states, "age addition nil". Most pensioners—particularly elderly ones over 70—would find that hard. The noble Baroness will be able to say that that is the same form which came out under the previous Conservative government and probably the Labour government before that. I was struck by this matter the other day.
	I am going on much longer than I intended. The noble Baroness said nothing at all about GMP uprating.

Lord Oakeshott of Seagrove Bay: My Lords, I am happy quickly to clarify that. Yes, it does mean the end of the contribution principle. However, people will all receive the same regardless of whether they have contributed.
	I shall summarise the other issue, on which I shall end. Putting the matter in a slightly wider context, I should like to remind the House and indeed the Government of the power of pensioners today. They are the fastest growing and keenest voting age group. As recently as 1992, a quarter of votes were cast by pensioners. Their turnout was similar to that of other groups.
	Last time 35 per cent of votes were cast by pensioners because 70 per cent of them voted compared with 55 per cent for the rest of the population. If you add in the over-55-year-olds—the pension generation, if you like—half the votes in the coming election will be cast by pensioners. Women, who will be in the majority, will be effectively moved in giving their verdict by the muddle and mess of the Government's pensions policy.
	To end on a positive note, as I look at the Box and the Front Bench, it is refreshing to see the entire government and official position represented by women.

Baroness Gould of Potternewton: apologise. Amendments Nos. 147 and 147A were pre-empted by the acceptance of Amendment No. 146.

Baroness Williams of Crosby: I apologise for arriving a few minutes after the beginning of this debate but, as some noble Lords will know, I am somewhat hampered in moving rapidly around the Chamber at the moment. I wanted to make a very brief contribution because, although I fully support, as indeed our Benches do, Amendment No. 169, there should be added to it an understanding accepted by all sides of the House.
	The proposal is that there should be a review and that that review should be undertaken by a group of Privy Counsellors appointed by the leaders of the respective parties and by the Prime Minister. My concern is not so much with the idea of a review, which I accept to be a good one; it is whether the Government would feel committed to taking that review very seriously. We are well aware that there has already been a review of Part 4 of the anti-terrorism Act 2001. That review, which I have read very carefully and regard as one of the most outstanding reports ever put before Parliament in recent years, was of course the report of the committee chaired by the noble Lord, Lord Newton of Braintree. It consisted of a group of distinguished Privy Counsellors, among whom, if I may pick out just one name, our noble colleague Lady Hayman, was a prominent contributor.
	It was an excellent report. Those of you who have read it and re-read it recently will know that Part 4 of the anti-terrorism Act 2001 went into extremely detailed proposals that were carefully thought through. It covered a range of issues including different kinds of trial that could be conducted in camera or with a security-cleared judge and alternatives, which the committee clearly indicated would be regarded as second-best. Nevertheless, the report consistently and with a great sense of duty covered the whole of the area that it was asked to do.
	The report made two striking observations. The first was that the picking out of foreign nationals was a great weakness been in the anti-terrorism Act 2001. In other words, the committee showed the prescience to recognise that that would become a major bone of contention. Secondly, the report made a clear indication that there would be possible alternatives that would not require derogation from the European convention. It indicated that no other country in Europe had required that to deal with the threat of terrorism.
	The tragedy is that that a carefully thought-through and very thoughtful report was dismissed in the course of a brief remark by the then Home Secretary Mr David Blunkett. He said in terms that he saw no necessity to consider any proposals to replace Part 4. He dismissed the issue of foreign nationals by saying that he had decided that these were the main targets that were required to deal with terrorism. He did not even consider the question of discrimination between British and foreign nationals which was at the heart of the Law Lords' decision of December 2004.
	If one then looks at the debate that took place in the House of Commons on 25 February last year, what one sees over and again is the simple dismissal of repeated pleas by Members of Parliament from all parties—Conservative, Liberal Democrat and almost certainly Labour—to ask that much greater consideration be given to the issues that have not been properly dealt with. One of the most striking of those contributions came from Mr Alan Beith, the deputy leader of my own party in another place, when he specifically said that the issues of terrorism that now confronted us were so serious that we needed the time, meditation and care to consider thoroughly built and constructed legislation that would enable us to deal with the terrorist threat without sacrificing our own liberties.
	In briefly addressing this amendment, I simply want to say that I sympathise fully with the position of its movers, the noble Lord, Lord Kingsland, and the noble Baroness, Lady Anelay, and indeed believe that it is important that such a review should to take place. However, the Committee requires, were it to pass this amendment, a commitment from the Government Front Bench that such a review would not be treated with the disdain and virtual contempt with which the Newton report was treated despite the first-rate quality and excellence of its recommendations which were supported by Members of all parties who served on that committee.
	I shall not delay the Committee by referring to an amendment that we shall discuss shortly which constitutes, if I may say so, the one guarantee—that is to say, it is the sunset amendment—that if there were to be a review it would have to be taken seriously. The House would not agree to continue with legislation if the carefully thought out recommendations of its Members were treated with the kind of disrespect with which the Newton committee was treated totally without any justification.

Lord Brennan: This is an exceptionally important point that embraces two principles, one of democracy and one concerned with the campaign against terrorism. In my view, a Bill of this nature should always have a review clause and a sunset clause. Parliament should always review constraints on liberty as grave as this Bill introduces.
	In doing so, two considerations arise, the first of which is democracy. The Bill went through the House of Commons in circumstances in which the other place had no opportunity fully to consider its ambit. It has come to this House and obviously will be the subject of major change. If it goes back to the Commons later this week, and if as I suspect there is a guillotine, the fact is that in our democracy a Bill as grave as this will go on to the statute book with the elected Chamber having given it no proper consideration.
	I cannot imagine a more disturbing state of affairs, but I accept the reality of it because I accept the bona fides of the Government's intent. They should accept our bona fides in return. When we want a review and a limitation clause, it is not to undermine the Bill, it is ensure that, upon review, it is in proper form. If we do not have a limitation and a review, the House of Commons will have lost its place and its function in this particular circumstance.
	The second consideration is the campaign against terrorism. Just as we need to be urged on by the Government, they need to be urged on by us. A limitation clause would serve as a trigger for the Government to come back with a comprehensive and up-to-date anti-terrorism Bill setting out new offences and new procedures in a composite picture that satisfies the public that we are doing our best to beat terrorism.
	So for the sake of democracy and for the sake of beating terrorism, when this comes back tomorrow I expect the House to favour review and limitation, and I hope that the Government will accept that what is intended is for the benefit of us all.

Lord Carlisle of Bucklow: I entered the Chamber not intending to speak on this debate, but having listened to the noble Lord, Lord Brennan, perhaps I may say that, curiously enough, he and I, on different sides of this House, existed in the same chambers together for many years. That kind of compromise is what is needed at this moment. I believe that it is possible to achieve a Bill which is necessary for the short term, but it has many faults and we should be given the opportunity to look at it with greater leisure so that those faults can be removed. We will then have in place a law that is accepted by both parties and would meet the recognised need for having some means of dealing with terrorists who cannot be dealt with under our normal forms of judicial procedure.
	The Government have rushed this Bill through unnecessarily and in a way that has provided no opportunity either in the Commons or in this place for a full debate. In fact one wonders what is going to happen when it returns to the Commons. Will the Government ask the Commons tomorrow or the day after to reject the amendments which they did not vote against in this House, and which have not been debated over there? Surely there is a case for a wider consideration of this Bill, and I share the view of the noble Lord, Lord Brennan, who I consider to be my friend, that we could achieve a compromise provided we then have the time to look seriously at the Bill to take its place.

Lord Forsyth of Drumlean: I am grateful to the Minister for giving way. I am mesmerised by the charming way in which she is explaining the sequence of events and I am almost persuaded. But does she not recognise that we all read the newspapers and listen to the media? It is perfectly clear that the Government have briefed the media that there will be no further concessions made on the Bill.
	The Minister has sat through the whole debate and Members on all sides of the House are putting forward very persuasive arguments, but that is in the context of a government who have already made up their mind that they are going to make no further concessions. Does the Minister understand why it is difficult to believe the script she is enunciating today when, outside, members of her own government have been briefing the media that what we do will make no difference at all?
	That of course makes it even more important that there is some kind of sunset provision. It seems to have become some kind of political test of virility whether the Bill reaches the statute book and some of us are concerned about the long-term consequences of it. That is where we are at.

Baroness Scotland of Asthal: I understand why the noble Lord would say that. Of course, no one on the Front Bench can be responsible for what is or is not said in the media. That is an aspiration that we all from time to time in our heady dreams have wanted to have, but it is not the reality. We have to confine ourselves to what is said from this Dispatch Box, and I can assure the Committee that we have continued to listen.
	I agree with what was said by my noble friend Lady Hayman, endorsed by the noble Lord, Lord Carlisle, and echoed again by the noble Lord, Lord Newton, that no one wants to die in a ditch for provisions which will not deliver what we jointly seek. Therefore, throughout these debates, I have held on to a number of issues which appear from all the debates to be plain: notwithstanding the difference of view that might be expressed from the various Benches, we all wish the same thing.
	No one on any side of the House has said anything to indicate that we do not value our civil liberties highly. We fully understand that in carrying out the balancing exercise between those things which we are driven to believe are necessary to protect the security and safety of the citizens of this country against those things which we trespass very carefully upon in regard to their civil liberties. That is a very delicate and difficult balance. I say again that no one in this House—and, I believe, in the other place—wishes to be in the position in which we find ourselves, where that balance has to be struck.
	I do not find in any of the contributions made from any side of the Committee any indication that any noble Lord is not absolutely serious about that issue. The issue for us all is where the line should be drawn: some of us fall on one side; some on the other.
	I assure your Lordships that all the debates that we have entered into are being given appropriate and anxious consideration. My right honourable friend the Home Secretary has made it clear from the inception in the way that he has handled the matter that he would have preferred a consensus. However, we have also made it clear that the Government will do what we feel is necessary to protect.
	We have a difficulty in relation to time. We do not believe that November would be an appropriate or convenient date. We have heard what noble Lords have said about the provisions currently contained in the Bill in relation to review; the three-monthly reports made by my right honourable friend the Home Secretary and the nature of the review after a 12-month period.

Lord Mayhew of Twysden: I hope to detain your Lordships briefly in support of my Amendment No. 172A. I agree with my noble friend Lord Kingsland that any rules of court regulating control order proceedings ought to be made by the Lord Chief Justice, and not by anyone else. I support the amendment to which he has just spoken, and not simply for the first occasion on which an order is made, as is provided for by the Bill at the moment.
	I refer your Lordships to paragraph 10 of the twelfth report of the Delegated Powers and Regulatory Reform Committee, which deals with this. The report says,
	"While we do not regard the provision in the Bill as inappropriate delegation, the House may wish to ask the Government for an explanation of the need for this change."
	We have had that explanation already this evening. It goes on to say, at paragraph 12,
	"The memorandum explains the negative procedure provided for these provisions by suggesting that 'As with other rules of court dealing with detailed procedural matters rather than substantive issues, the negative procedure provides an appropriate level of scrutiny'".
	I will come back to that.
	I ask your Lordships to take into account paragraph 3(2)(b) to the schedule, which my amendment seeks to remove:
	"the Lord Chancellor is not required, before exercising the powers, to undertake any consultation that would be required in the case of rules made by"
	the person by whom they are otherwise exercisable. That person is normally the rules of court committee of what used to be called the Supreme Court. There is a mandatory requirement for it to consult such persons as it considers appropriate before making any civil procedure rules. Why should the Lord Chancellor not be required to consult such persons as he considers appropriate? The only compulsory duty to consult binding the Lord Chancellor is to consult the Lord Chief Justice.
	If the Lord Chancellor is to be vested with this power, the less disparity between the obligations upon the rules committee and those upon the Lord Chancellor the better. Any disparity should be as slight as possible. That is not at the forefront of our problems in this Bill, but it is one that has its own significance.
	I turn to my other amendment. The effect of Amendment No. 176A is that the rules must be subject to a requirement for affirmative procedure for approval. One glance at the hair-raising list of objectives that in some instances must be served by rules of court is surely enough to establish the case for that.
	I propose, in the words on the Marshalled List, that
	"An order made under sub-paragraph (5)"
	shall be subject to the affirmative resolution. I realise that sub-paragraph (5) relates only to Northern Ireland, and I ought to have made the amendment broader. I will come back to that, if appropriate, on Report. The point, however, is the same. If the Lord Chancellor is to have these powers, it ought to be a matter for affirmative resolution.
	I refer again, briefly, and in conclusion, to the report of the Select Committee. Paragraph 14 says,
	"In view of the extensive powers given by the bill to restrict an individual subject to a control order, control order proceedings assume a particular importance. It is apparent from paragraph 4 of the Schedule that the rules are likely to contain provisions which would not be applied in other proceedings and which may well attract a level of controversy".
	It can say that again.
	"There is also a case for suggesting that because Parliament is being asked to consider the grant of these powers in some haste, the higher level of scrutiny should be applied when the power comes to be exercised. So the negative procedure provides an inadequate level of scrutiny. We consider that an affirmative procedure should apply to the initial rules by the Lord Chancellor for England and Wales and Northern Ireland, and recommend accordingly".
	That committee, on which I had the honour to serve for several years, is normally indulged by successive governments with the acceptance of its recommendations. I hope that when the noble and learned Lord replies, we shall find that that practice will not be departed from tonight.

Lord Falconer of Thoroton: Beginning with the making of the first set of rules in relation to the control order procedures, the provisions made in the Bill involve the Lord Chancellor, after consulting with the Lord Chief Justice, making the rules for both England and Wales and for Northern Ireland. In Scotland, the Lord President makes the rules. That procedure is proposed because, in relation to each of the three jurisdictions, the rules are, in practice, required to be effective as soon as possible. The Part 4 powers lapse at midnight on 13 March, which is Sunday evening.
	As for the proposal that if the Lord Chancellor makes the rules he should consult everyone that the Civil Procedure Rules Committee would consult in England and Wales and the Northern Ireland Civil Procedure Rules Committee would consult, that is not remotely practical. It is important that rules are in place. The critical question seems to be what is the best way to get there in a way that produces rules, as the noble Lord, Lord Kingsland, said, that are, in practice, judicial rules rather than in any way motivated by politics.
	There are rules for the SIAC hearings at the moment which, although not identical, will be quite similar to the rules that will be applied in relation to this procedure. The best and most practical course in relation to getting rules that everyone consents to in England and Wales and in Northern Ireland, is for the Lord Chancellor to propose them, for the Lord Chief Justices in both those jurisdictions to consider them and then for all of us to reach agreement. I am sure that that is what will happen in practice. That will produce rules that are acceptable. But, as I said, these rules will need to be looked at very quickly thereafter because these are rules ultimately that we envisage being made by the Civil Procedure Rules Committee in both those countries.
	How do we get to that point? The right course is for us to agree upon a procedure for the purposes of Parliament that the rules can come into effect straightaway but that they can, in some way or another subsequently, be reviewed by this House—the sort of procedure proposed by the noble Lord, Lord Goodhart. There could be an affirmative resolution procedure of an unusual sort, which the noble Lord suggested, or a negative procedure whereby this House could pray against the rules. I am not clear at the moment what the difference would be in practice, although I notice that the noble Lord, Lord Garden, is shaking his head, so he is aware of what the difference between the two is.
	I cannot see at the moment what the difference is, but we would need to consider some process by which the rules come into effect straightaway but that both Houses have a chance to look at them.
	While that process is going on, no doubt the normal procedures will be gone through for the Civil Procedure Rules Committees in the Northern Ireland and in England and Wales to produce appropriate rules. That way, we have covered the short-term problem. We have allowed Parliament to have a look at the rules and we have a process in place whereby eventually we get more permanent rules that apply.
	Scotland is in a separate category. That was made clear in the course of the debates before the dinner hour adjournment. The Lord President will make the rules there, not the Lord Chancellor, on the basis that the rules of procedure of the Court of Session are a reserved matter not a matter for the Westminster Parliament or the Westminster government. The Lord President is confident he can produce rules within the time required. If further amendments are required, it is a matter for the Lord President to determine how those are dealt with.
	This is a practical problem. I have sought in my proposal to accommodate all ranges of opinion around the House. It is not perfect but it is a sensible and workable solution. In those circumstances, I invite noble Lords to withdraw their amendments.

Lord Mayhew of Twysden: I listened with my usual attention to the noble and learned Lord the Lord Chancellor. He dismissed as being fairly impracticable my suggestion that the Lord Chancellor when making these rules should be under the same obligation as is imposed upon the Civil Procedure Rule Committee. If it is impracticable, it is solely because of the absurd and grotesque speed with which this legislation is being pursued. That point has been adequately laboured tonight and I shall not repeat it. In the circumstances I shall not move this amendment or Amendment No. 176A.

Lord Kingsland: I am most grateful to the noble and learned Lord.
	Paragraph 4(1)(b) to the schedule enables or requires control order proceedings to be determined without a hearing. I find that rather alarming. In the extreme circumstances in which it might be inappropriate in some unforeseeable—at least by me at the moment—set of conditions not to have the defendant present, it would certainly be necessary to have the defendant's legal representative present at an oral hearing. I cannot understand how this paragraph can be justified when considered together with the imposition of a control order that is denying a citizen the rights that he has had since time immemorial.
	I view paragraph 4(1)(c), which entitles the rules to make provisions about legal representation in such proceedings, with the gravest suspicion. It suggests to me that there might be some circumstances in which the defendant might not be legally represented. That suspicion is confirmed by the last line of paragraph 4(2)(a), which refers to:
	"a relevant party to the proceedings or his legal representative (if he has one)".
	I would have thought that if the potential subject of the control order is not entitled to have a hearing, a fortiori he ought to be entitled to have a legal representative.
	By drawing your Lordships' attention to the last line of paragraph 4(2)(a), I have said most of what I wish to say about the paragraph. It states:
	"Rules of court made in exercise of the relevant powers may also, in particular . . . make provision enabling control order proceedings or relevant appeal proceedings to take place without full particulars of the reasons for decisions to which the proceedings relate being given to a relevant party to the proceedings or his legal representative".
	I find that quite unacceptable. It may well be that a sifting process would have to take place so that the reasons given effectively disguise the sources of evidence or the means by which that evidence has been gathered, but I can see no justification for the terms of the clause itself.
	Finally, I come to paragraph 4(3)(c), which is perhaps the most alarming provision in this entire paragraph. It states:
	"The Secretary of State is not required for the purposes of any control order proceedings or relevant appeal proceedings to disclose anything to the relevant court, or to any other person, where he does not propose to rely on it in those proceedings".
	The noble and learned Lord the Lord Chancellor and I had an earlier exchange about this matter, but I remain unclear about what his intentions are with respect to it. It seems to me that to be contrary to all the principles that have been developed in the criminal courts over recent years. To deny access by the defendant to information which is favourable to him seems to be grotesquely and inexplicably one-sided. Quite apart from anything else, it offends one's basic sporting instincts.
	All that part of paragraph 4 should go. As the other matters to which I wish to refer in paragraph 4 come in amendments in the next group, I shall simply beg to move.

Lord Thomas of Gresford: I find the provisions of paragraph 4 of the Schedule the most shocking part of the Bill.
	It is very important that there should be a judicial decision for control orders if the principle of control orders is to be accepted. But, as we have said on previous occasions, the other side of the coin is that there must be due process—something resembling a judicial hearing to enable a judge to take a judicial decision.
	Almost everything seems to be excluded in this paragraph. There are provisions to be made about the mode of proof in control order proceedings—obviously hearsay is involved in that; intercept evidence gets a paragraph to itself; but it also permits evidence that has been obtained by torture. I find it shocking that the Court of Appeal could recently decide—as it is entitled to—that it is part of the law of England that the courts will receive evidence obtained by torture subject only to one condition: that we do not do the torturing ourselves. I cannot understand why it is more reliable if the torture is carried out in Chechnya, Azerbaijan or some other place.
	We have seen an unbelievable decline in standards, both in the United States through the way it has behaved at Abu Ghraib and Guantanamo, and, I regret to say, in our own behaviour in Iraq, as has been found by recent hearings in the courts martial. This is another part of the decline of the judicial system being given statutory form. I find it absolutely shocking.
	We will come on to sub-paragraph (3) of paragraph 4 in due course. But the one matter that really made me stand up and throw the Bill away was sub-paragraph (3)(c) which deals with disclosure. Under the terms of this, it would not longer be necessary for the Secretary of State to disclose matters that were exculpatory as far as the suspect was concerned. Part 4 of the present Act has been condemned by the Judicial Committee of this House: but in that Act there are proper provisions for disclosure—admittedly unsatisfactory in that it is disclosure to lawyers who have no opportunity of carrying out their fundamental duty of taking instructions from their clients. But here it is left to the Secretary of State to conceal from the claimant matters that are contrary to the Secretary of State's case or which might assist the claimants case.
	We wholeheartedly support the amendment moved by the noble Lord, Lord Kingsland. We emphasise and will continue to emphasise the role played by torture in obtaining evidence that is put before these tribunals. We will deal with that matter in due course. We shall look to see the complete rewriting of this paragraph along the lines of the proposed amendments.

Lord Mayhew of Twysden: What we have just heard is right. I want to return briefly to paragraph 4(3)(c) to which the noble Lord, Lord Thomas of Gresford, recently referred. It states that,
	"the Secretary of State is not required for the purposes of any control order proceedings . . . to disclose anything to the relevant court, or to any other person, where he does not propose not rely on it in those proceedings".
	That, as the noble Lord, Lord Thomas, said, includes material that exculpates the controlled person—the defendant, if one can call him that. Each of the Ministers, the noble and learned Lord the Lord Chancellor and the noble Baroness, Lady Scotland, are distinguished members of the Bar. Would not each acknowledge that if prosecuting counsel were to be found in disciplinary proceedings to have withheld material that exculpates the defendant, that would lead unquestionably to his disbarring, as being in fundamental breach of a most important tenet of a member of the Bar, which is to serve the interests of justice?
	If the noble and learned Lord the Lord Chancellor and the noble Baroness, Lady Scotland, are prepared as Ministers to advocate this proceeding, I am bound to ask them in all friendship whether there is anything they would not be prepared to sit on the Front Bench and advocate.

Lord Judd: Like the noble Lord, Lord Thomas of Gresford, I have unlimited respect for my noble friend Lady Ramsay and her professional experience in these spheres. All of that means that we should listen to what she says with great care.
	It is far too late in the evening to go over all the arguments, but I commend to the Committee the report of the Joint Committee on Human Rights, which looked at the issue very seriously. I ask my noble friend to accept that we took the kinds of points that she has made very seriously. However, looking at practice elsewhere in the world, and looking at what was possible here, we concluded that the situation was not as absolute as she has very forthrightly expressed it this evening, and that there would be ways in which to tackle this problem while maintaining the responsibility for the integrity of the operation and for the safety of those involved in terribly dangerous and vital work. I ask noble Lords on all sides of the Committee, if they can spare the time, to read the report and to see what the committee had to say on the matter.
	I wish to respond to what the noble Lord, Lord Thomas of Gresford, said about torture. Again, the Joint Committee on Human Rights has been deeply exercised about that and has spent a good deal of time considering it. I remind Members of the Committee that the Joint Committee is made up of six Members of this House and six Members of the other place, about half of whom are lawyers and half non-lawyers. All the principal parties are represented on that committee.
	Of course the committee took into account what the Court of Appeal had ruled. But I hope that the Committee will forgive me at this late hour if I do not go into an expansive discourse. I beg the indulgence of the Committee if I read just three paragraphs from the Joint Committee's report, because I suspect that, given all the pressures of time and the rest, not everybody has had time to see them. I would just like to read them; they will not take long:
	"The UN Committee Against Torture, in its recent Concluding Observations, expressed its concern that UK law had been interpreted to exclude the use of evidence extracted by torture only where its official were complicit, and recommended that the Government should give some formal effect to its expressed intention not to rely on or present in any proceeding evidence where there is knowledge or belief that it has been obtained by torture.
	We asked the Home Secretary"—
	when the Home Secretary was giving evidence—
	"if he could confirm that none of the material which is relied upon in relation to the current detainees has been obtained from other sources abroad, including the United States, where there have been serious allegations of torture and prisoner abuse. The Home Secretary said that the Government did consider whether it believed that torture had been used in any particular case, and that it did not believe that torture had been used in the cases of the current detainees, but"—
	and I quote the Home Secretary—
	"'we are in a serious difficulty here in that proving a negative in this case is a difficult thing to do.' When pressed on how precisely the Government establish that torture has not been used, the Home Secretary repeated that proving a negative is a difficult thing to do. When asked for an assurance that he will apply an absolute rule that if there is any question that evidence has been obtained by torture it must not be used, the Home Secretary said"—
	and again, I quote—
	"I would need to be convinced that it had been used which . . . I am not in this case'".
	Our report concluded with this paragraph:
	"We remain concerned about the possible use of torture evidence by UK authorities. Our concerns have not been allayed by the evidence of the Home Secretary. Indeed, we now have concerns about whether the Government has any system in place for ascertaining whether intelligence which reaches it in relation to people allegedly involved in terrorism-related activity has been obtained by torture. The Bill is silent on this question, despite the obvious concern that the material relied on by the Government to obtain control orders may well include material which has been obtained by torture. We recommend that the Government takes the opportunity presented by this Bill to implement the UNCAT recommendation that it give some formal effect to its expressed intention not to rely on or present in any proceedings evidence which it knows or believes to have been obtained by torture".

Lord Falconer of Thoroton: These are important provisions about the rules of procedure and it is incumbent on the Committee to consider the material put before us by those who have engaged in the debate. I am extraordinarily impressed by what has been said by both my noble friend Lady Ramsay and the noble Baroness, Lady Park. Indeed, their words are wholly reflected by those with any experience of what has gone in within SIAC. I refer to three authorities in that respect. First, the committee chaired by the noble Lord, Lord Newton, made it absolutely clear that certain material could not be disclosed either to the suspect who was the subject of the orders or to his lawyers. Secondly, the noble Lord, Lord Carlile of Berriew, made exactly the same points about the noble Baroness, Lady Park, in his report. He referred specifically to the fact that free disclosure would put human intelligence sources at risk. Thirdly, the judges in SIAC supported the non-disclosure of material to the suspect for precisely the reasons that the noble Baronesses, Lady Ramsay and Lady Park, put to this Committee this evening.
	With respect to the noble Earl, Lord Onslow, he delivered an entertaining speech, although I prefer the epithet of the noble Baroness, Lady Park. It sounded absolute nonsense. One should look to see what methods had been crafted in the context of the present situation and accept that the people who had been working it may know better than us. We should accept those provisions.
	I also draw attention to the fact that, as far as lawyers are concerned—in a sense, lawyers should follow a problem, rather than think they can impose a template—the European Court of Human Rights adopted the approach whereby it was not disclosed to the suspect or his or her lawyer. Instead, they indicated that the use of a special advocate was the right procedure, which is SIAC. As I indicated during earlier submissions, the approach that SIAC has taken was explicitly approved on two separate occasions by the Court of Appeal as being a just process. The Court of Appeal looked at it and said that it is the right way to deal with it.
	In the case of M, the noble and learned Lord, Lord Woolf, the Lord Chief Justice, explained:
	"As this appeal illustrates, a special advocate"—
	which means that some material has not been disclosed to the suspect—
	"can play an important role in protecting an appellant's interests before SIAC. He can seek further information. He can ensure that evidence before SIAC is tested on behalf of the appellant. He can object to evidence and other information being unnecessarily kept from the appellant".
	He concluded:
	"It is possible by using special advocates to ensure that those detained can achieve justice and it is wrong, therefore, to undervalue the SIAC appeals process".
	That is somebody who has looked at it on a number of occasions. Everybody who has looked at it thinks that that is the right way to deal with it.
	I shall go through the provisions about rules very quickly to satisfy the noble Lord, Lord Kingsland. Paragraph 4(1)(a) states:
	"make provision about the mode and burden of proof".
	We delete the words "and burden" to deal with his point. I cannot believe that he objects to rules being made which talk about the mode of proof,
	"in control order proceedings and about evidence in such proceedings".
	Paragraph 4(1)(b) states:
	"enable or require such proceedings to be determined without a hearing".
	I cannot believe that the noble Lord, Lord Kingsland, wants it to be necessary for there to be a hearing even where there is a consent order or for some minor matter. Of course not. Therefore, paragraph 4(1)(b) is not the horror that the noble Lord sought to suggest it was.
	Paragraph 4(1)(c) states:
	"make provision about legal representation in such proceedings".
	That was put in so that the court can allow somebody who would otherwise not have rights of audience to have rights of audience. I do not know whether or not the noble Lord would wish that to be removed.
	Paragraph 4(2)(a) states:
	"make provision enabling control order proceedings or relevant appeal proceedings to take place without full particulars of the reasons for decisions to which the proceedings relate being given to a relevant party to the proceedings or his legal representative (if he has one)".
	That is the problem in relation to not disclosing material to the suspect or his lawyer. If he has one is a matter for him to decide, because I made clear previously that he would be entitled to legal aid without a means test.
	Paragraph 4(2)(b) states:
	"make provision enabling the relevant court to conduct proceedings in the absence of any person, including the relevant party to the proceedings and his legal representative (if he has one)".
	Again, that is exactly the same point.
	Paragraph 4(2)(c) states:
	"make provision about the functions in control order proceedings and relevant appeal proceedings of persons appointed under paragraph 7".
	That is the special advocate procedure.
	Paragraph 4(2)(d) states:
	"make provision enabling the relevant court to give a relevant party to control order proceedings or relevant appeal proceedings a summary of evidence taken in his absence".
	Again, this allows him to be told certain things, but not others.
	The provisions in paragraph 4(2)(a) to (d) raise four square the balance between protecting human intelligence and intercept material, which is method, and the right to try to give as fair as possible a trial to the suspect. We put them in so that it is clear that we can adopt the SIAC rules. I am surprised that the noble Lord, Lord Kingsland, objects.
	Paragraph 4(3)(c) has also been referred to. It states:
	"the Secretary of State is not required for the purposes of any control order proceedings or relevant appeal proceedings to disclose anything to the relevant court, or to any other person, where he does not propose to rely on it in those proceedings".
	We make it clear that any exculpatory material has to be disclosed. The practice at the moment is that the Secretary of State gets his counsel to check through all of the material to see whether there is any exculpatory material. That is then disclosed to the court and to the special advocate acting in the context of the suspect, who does not see all of the material.
	If there is any material that the Secretary of State objects to the suspect or his legal representative seeing, then, as long as the court agrees—and it has hitherto—it will not be shown to the suspect or his legal representative. So both the court and the special advocate definitely see the exculpatory material and, if there is no objection, then so does the suspect and his legal representative.

Lord Falconer of Thoroton: The noble Lord, Lord Kingsland, exactly follows what I was saying. I am happy to go away and, if necessary, amend paragraph 4(3)(c) to make it clear that nothing must prevent—indeed, there must be rules that require—the disclosure of exculpatory material to the court and to the special advocate.
	The firewall regards material that could damage national security by going beyond the court or the special advocate to the suspect or his legal representative. I completely agree that exculpatory material has to go to the court and the special advocate. The question is where the line is drawn after that. I am not sure whether paragraph 4(3)(c) prevents that, but if it does, then we will amend it to ensure that the court and the special advocate, at least, see it. That is what I was saying and what I think the noble Lord, Lord Kingsland, is saying.

[Amendments Nos. 182 not moved.]
	[Amendment No. 183 not moved.]

[Amendment No. 194 not moved.]
	[Amendments Nos. 195 to 201 not moved.]
	Schedule, as amended, agreed to.
	House resumed: Bill reported with amendments.
	House adjourned at fourteen minutes before midnight.
	Correction
	In col. 415 on Thursday 3 March, the contribution of the Lord Carlisle of Bucklow was misattributed to the Lord Carlile of Berriew.